ORDER
Jayant Patel, J.
1. Leave to join Shri Kevalchand Kanraj Mehta as party opponent, who is personally present for claiming his right as the tenant in the property, and the proportionate disbursement thereof, and he has submitted his written submission for claiming his right as the tenant and the disbursement thereof. The same is taken on record.
2. The applicant of Company Application No. 215 of 2008 has prayed for appropriate direction to the OL to desist from finalising the payment of the sale proceeds in favour of opponent No. 2 and 3 and it is also prayed to direct to pay the amount of compensation to the applicant in view of the tenancy rights of the applicant in the property.
3. The Company Application No. 173 of 2008 is preferred by three applicants namely Muniruddin Fazluddin Shekh, Nuruddin Fazluddin Shekh for their share as the landlord of the property and also for the share of Shaikh Gulamnabi Ilamodin claiming as the power of attorney of deceased Amirunisa Fazluddin Shekh and the prayers are for disbursement of the amount in their favour by the OL.
4. This Court on 22.10.2007 after considering the total area as 279 sq. mtr. based on the monetary assessment, fixed up price for acceptance of the offer. Therefore, the property at the ground floor was 111.21 sq. mtr. at the first floor it was 41.44 sq. mtr. and at the second floor it was 31.05 sq. mtr. There is no dispute for the area of first floor and second floor, since the only rights claimed was by the offerer and that part is already considered by the Court, at the time when the order came to be passed on 22.10.2007. However, it appears that the applicant of Company Application No. 215 of 2008 claims rights over the area of 6.9 sq. mtr. at the ground floor, which was in occupation of the applicant therein. Therefore, such area can be rounded as 7 sq. mtr. at the ground floor. Further, another tenant Shri Kevalchand Kanraj Mehta, who has appeared as party-in-person submitted reply as claimed that except the area of 7 sq. mtr., the remaining area at the ground floor was in his possession, and he was in occupation prior to the earthquake and the demolition of the premises. In support of his submission he has placed on record Panchnama prepared in H.R.P. No. 801 of 2001 showing occupation of the area. If all the area is included, even as per the Panchnama, it comes to 627.50 sq. ft. and equivalent to 69 sq. yard. As per the say of Shri Kevalchand Kanraj Mehta, if the measurement is converted into sq. mtr it roughly comes to about 57 sq. mtr.
5. Mr. Brahmbhatt learned Counsel for the applicant of Company Application No. 173 of 2008 has admitted the position that Shri Kevalchand Kanraj Mehta was in occupation as the tenant, and for apportionment and disbursement of the amount, if the same treatment is given for the share of the tenant as that of 25 percent from the share of his client, he has no objection. However, the insistence was made by him that the tenant had the liability to pay corporation tax and it appears that such tenants have not paid the corporation tax an therefore, they may be directed to pay outstanding tax. He also submitted that if any benefits are available to the tenant on account of earthquake by way of relaxation in the corporation tax, landlord has no objection, if such benefits are extended by the corporation. The submission was that it is only after the payment of the corporation tax or the No Due Certificate from the corporation that no amount is outstanding towards the said part of the property, the amount may be made available to such tenant.
6. Mr. Brahmbhatt learned Counsel appearing for the applicant of Company Application No. 173 of 2008 declared before the Court that the applicants are not insisting for the share of deceased Amirunisa Fazluddin Shekh at this stage and the amount for the present may be retained by OL for her share and as and when the certificate is issued, the claim shall be made before the OL.
7. This Court on 22.10.2007 when passed the order, it was observed by the Court that the property comprises of four shares out of which respondent Nos. 2 and 3 therein, who are applicant Nos. 1 and 2 in Company Application No. 173 of 2008 are having 2/4 share. It was also considered by the Court that the share of the tenant at the most could be 25 percent of the consideration, which may be realised. The tenancy was created of the property in favour of applicant of Company Application No. 215 of 2008 as well as Shri Kevalchand Kanraj Mehta by original respondent No. 2 and 3 representing the 2/4 consideration. Therefore, it was observed by this Court in the said order that such tenant at the most would be entitled to 25 percent of the share from the share of respondent Nos. 2 and 3 having 2/4 share in the whole of the property.
8. Concerning to the tenancy rights of applicant of Company Application No. 215 of 2008 and Shri Kevalchand Kanraj Mehta, it appears that there is no dispute for their occupation as the tenant at the ground floor. The claim of the applicant of Company Application No. 215 of 2008 is over 7 sq. mtr area of the land, whereas Shri Kevalchand Kanraj Mehta is over 57 sq. mtr. property. As such aspect is not disputed even by Mr. Brahmbhatt representing the landlord, much discussion may not be required on the said aspect.
9. The apportionment if considered, as recorded by this Court in its earlier order dated 22.10.2007 per sq. mtr. the value was calculated at Rs. 11,290.30 paisa and accordingly the value of 7 sq. mtr. would come to Rs. 79,032.10 paisa, for 57 sq. mtr. it would come to Rs. 6,43,547.10 paisa. Out of the said amount, the share of the landlord who created tenancy, original respondent No. 2 and 3 is 2/4. Therefore, if the individual share qua each tenant is considered, it would come to Rs. 39,516/- for the area in occupation of the tenant, who is the applicant of Company Application No. 215 of 2008, and it would come to Rs. 3,21,773/- for the area of 57 sq. mtr. which was in occupation as tenant of Shri Kevalchand Kanraj Mehta. If 25 percent of the amount is calculated on the aforesaid separate valuation, it would come to Rs. 9879/- being share of the tenant, who is applicant of Company Application No. 215 of 2008, and Rs. 80,444/- being the share of Shri Kevalchand Kanraj Mehta. Hence, their shares are quantified accordingly.
10. Mr. Brahmbhatt learned Counsel for the applicant is right in submitting that until the outstanding corporation tax dues are paid of the premises, which was in occupation of both the tenants, if the amount is disbursed, it may further complicate issue. Therefore, such tenant shall be required to produce the certificate of the corporation that either no tax is outstanding or the tax if any is already paid by them. Of course it would also be open to the tenant to move corporation for relaxation in the tax, if permissible as the policy of the corporation on account of the earthquake and the damage of the property.
11. Mr. Munshi learned Counsel appearing for the offerer, who has purchased the property also made grievance that if the corporation tax is not paid of the property qua share of the landlord- client of Mr. Munshi, it may create further complication in getting property transferred in the name of the purchaser and therefore, it was submitted that this Court may suitably protect the interest of the purchaser and the tax liability may not fall upon the purchaser of the property.
12. Until the liability of the tax dues qua the share of respondent Nos. 2 and 3 and the tenant who are claiming monetary benefit, in any case has got to be discharged by the said respondent/ persons, other portion can be taken care of as per the earlier order passed by this Court for disposal of the property.
13. As the OL is having fund, the same will have to be distributed in the following manner:
A) The applicant of Company Application No. 215 of 2008 and Shri Shri Kevalchand Kanraj Mehta shall be entitled to the disbursement of Rs. 9879/- and Rs. 80,444/- respectively towards the valuation assessed in tenancy rights from the OL. However, OL shall disbursed the amount only after certificate is produced by the aforesaid tenants that no corporation tax dues are outstanding for the area, which were in their occupation. After production of such certificate OL shall disburse the amount by A/c. Payee Cheque within one month from the production of such certificate. Hence, Ordered accordingly.
B) The remaining amount forming 2/4 share of the total consideration minus the amount attributing to the tenant concerned, shall be disbursed to the applicant No. 1 and 2 of Company Application No. 173 of 2008 by OL, after verification by the OL that no corporation tax is outstanding over the property representing 2/4 share by such applicant. The earlier direction as given on 22.10.2007 in the Company Application No. 601 of 2006 shall continue to remain in operation with the modification as ordered earlier.
C) Accordingly, out of the share of original opponent No. 1 and 2 of Rs. 15,75,000/-, the OL shall be required to deduct the amount of Rs. 3,16,219/- being Rs. 2,25,806/-, the share of the tenant of first and second floor and Rs. 9879 being share of Applicant of Company Application No. 215 of 2008 and Rs. 80,444/- being share of Shri Kevalchand Kanraj Mehta. Hence, the net amount would come to Rs. 12,58,871/- minus expenses incurred by the OL for advertisement and other incidental work for disbursement of the property, but such expenses shall be proportionately recovered from the opponent Nos. 1 and 2 representing 2/4 share. The OL shall disburse the amount within one month from the production of the order and the certificate.
D) All disbursement shall be made by OL upon filing of such undertaking by each of the tenant or opponent No. 2 and 3, as the case may be that in the event any claim is found or it is so ordered by this Court, the amount shall be returned as may be ordered by this Court in future. It is only after the copy of the undertaking is produced before the OL, the cheque shall be handed over. Hence, ordered accordingly.
14. The applications are disposed of in terms of the aforesaid directions. Direct service is permitted.